RAS 4511 DOCKETED 06/10/02

UNITED STATES OF AMERICANUCLEAR REGULATORY COMMISSION

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

In the Matter of ))

PRIVATE FUEL STORAGE, L.L.C. ) Docket No. 72-22-ISFSI)

(Independent Spent ) Fuel Storage Installation) )

______________________________________________________________________

NRC STAFF’S FINDINGS OF FACTAND CONCLUSIONS OF LAW CONCERNING

CONTENTION SUWA B (RAIL LINE ALIGNMENT ALTERNATIVES)

______________________________________________________________________

Robert M. WeismanCounsel for NRC Staff

June 7, 2002

1 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),LBP-00-35, 52 NRC 363, 367-372 (2000).

June 7, 2002

UNITED STATES OF AMERICANUCLEAR REGULATORY COMMISSION

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

In the Matter of ))

PRIVATE FUEL STORAGE, L.L.C. ) Docket No. 72-22-ISFSI)

(Independent Spent ) Fuel Storage Installation) )

NRC STAFF’S FINDINGS OF FACTAND CONCLUSIONS OF LAW CONCERNING

CONTENTION SUWA B (RAIL LINE ALIGNMENT ALTERNATIVES)

I. INTRODUCTION

1.1. These findings and rulings address all outstanding issues with respect to

Contention SUWA B (Rail Line Alignment Alternatives) concerning the application filed on

June 20, 1997, by Private Fuel Storage, L.L.C. (“PFS” or “Applicant”), for a license under

10 C.F.R. Part 72 to possess spent fuel and other radioactive materials associated with

spent fuel storage in an away from reactor independent spent fuel storage installation

(“ISFSI”), which PFS proposed to construct and operate on the Reservation of the Skull

Valley Band of Goshute Indians in Skull Valley, Utah.

1.2. Detailed findings of fact concerning the procedural history of this proceeding

are set forth in the Atomic Safety and Licensing Board’s “First Partial Initial Decision”

(Contention Utah R, Emergency Plan).1 Those findings of fact are hereby incorporated by

reference herein, and only those portions of the procedural history relating to the contention

addressed herein are set forth below.

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2 See “[SUWA] Request for Hearing and Petition to Intervene” (Nov. 18, 1998)(“SUWA Petition”).

3 See “SUWA Contentions Regarding PFS Facility License Application (The LowRail Spur) (Nov. 18, 1998) (“SUWA Contentions”).

1.3. On November 18, 1998, the Southern Utah Wilderness Alliance (“SUWA”)

submitted a late-filed petition to intervene in this proceeding,2 together with two late-filed

contentions, including the contention considered herein.3 In a Memorandum and Order

(Granting Late-Filed Intervention Petition) issued on February 3, 1999, the Licensing Board

granted SUWA’s petition to intervene and admitted Contention SUWA B, which addressed

rail line transportation alternatives to PFS’s proposed new rail line (“Low Corridor rail line”).

See Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-99-3,

49 NRC 40 (1999). In a decision dated April 15, 1999, the Commission affirmed the

Licensing Board’s admission of SUWA as a party to the proceeding, and the Board’s

admission of Contention SUWA B. See Private Fuel Storage, L.L.C. (Independent Spent

Fuel Storage Installation), CLI-99-10, 49 NRC 318 (1999).

1.4. In June, 2000, the staff of the Nuclear Regulatory Commission (“NRC”) and

the staffs of the Bureau of Indian Affairs (“BIA”) of the Department of Interior (“DOI”), the

Bureau of Land Management (“BLM”) of DOI, and the Surface Transportation Board

(“STB”) issued their draft environmental impact statement (“DEIS”) regarding the proposed

PFS facility (“PFSF”) and its associated transportation facilities. See “Draft Environmental

Impact Statement for the Construction and Operation of an Independent Spent Fuel

Storage Installation on the Reservation of the Skull Valley Band of Goshute Indians and the

Related Transportation Facility in Tooele County, Utah,” NUREG-1714.

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4 See “[PFS] Motion for Summary Disposition of Contention SUWA B–RailroadAlignment Alternatives,” dated June 29, 2001 (“PFS Motion”).

5 Subsequent to this decision, the Licensing Board before which ContentionSUWA B remained pending was reconstituted. See “Notice of Reconstitution,” datedDecember 19, 2001 (unpublished).

1.5. On June 29, 2001, PFS filed a motion pursuant to 10 C.F.R. § 2.749 seeking

summary disposition of Contention SUWA B.4 The Licensing Board denied the PFS

Motion, indicating that in its motion PFS had presented a new west valley rail line alternative

that was not analyzed by the NRC staff (“Staff”).5 See Private Fuel Storage, L.L.C.

(Independent Spent Fuel Storage Installation), LBP-01-34, 54 NRC 293, 303-04 (2001).

1.6. In December, 2001, the Staff and the staffs of the BIA, BLM, and STB

(collectively, the “cooperating Federal agencies”) issued their final environmental impact

statement (“FEIS”) regarding the proposed PFSF and its associated transportation facilities.

See “Final Environmental Impact Statement for the Construction and Operation of an

Independent Spent Fuel Storage Installation on the Reservation of the Skull Valley Band

of Goshute Indians and the Related Transportation Facility in Tooele County, Utah,”

NUREG-1714.

1.7. Evidentiary hearings with respect to this contention were held in Salt Lake

City, Utah, on April 23-24, 2002, in accordance with a notice of hearing published in the

Federal Register. See 67 Fed. Reg. 10,448 (Mar. 7, 2002). Several witnesses appeared

on behalf of PFS, SUWA, and the Staff, as summarized below. As indicated in the notice

of hearing, limited appearance statements were received from many members of the public

in special sessions held in Tooele, Utah, on April 26, 2002.

1.8. These proposed findings of fact and conclusions of law present the Licensing

Board’s findings of fact with respect to the evidence presented at the April 2002 hearings

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6 In its decision in CLI-99-10, the Commission indicated that the application didconsider a range of alternatives, but that those alternatives address only generaltransportation options (e.g., trucking vs. railroad), and did not reflect consideration ofalternative configurations to the proposed Low Corridor rail line alignment. See CLI-99-10,49 NRC at 326. As the Commission stated, the contention involves “a failure to consideralternative configurations to the specific alignment in question.” See id. The contentiondoes not involve further consideration of alternatives to rail transportation in general.

concerning Contention SUWA B, and the Board’s conclusions of law with respect to this

contention.

II. FINDINGS OF FACT

A. Background

2.1. As admitted by the Licensing Board, Contention SUWA B asserted that the

Applicant’s Environmental Report (“ER”) submitted with the application does not develop

and analyze a meaningful range of alternatives to the proposed Low Corridor rail line:

The License Application Amendment fails to develop andanalyze a meaningful range of alternatives to the LowCorridor Rail Spur and the associated fire buffer zone thatwill preserve the wilderness character and the potentialwilderness designation of a tract of roadless Bureau of LandManagement (BLM) land — the North Cedar Mountains —which it crosses.

PFS, LBP-99-3, 49 NRC at 53. The Licensing Board specifically stated that this contention

was admitted insofar as “it seeks to explore the question of alignment alternatives to the

proposed placement of the Applicant’s proposed Low rail spur.” Id. In affirming the

Licensing Board’s decision to admit this contention, the Commission agreed with the Board

that “SUWA can litigate the question whether, in the circumstances of this case, NEPA

requires PFS and the Staff to consider alternative rail routes that might prove more

environmentally benign than PFS’s chosen route.”6 PFS, CLI-99-10, 49 NRC at 327.

2.2. As a basis for its contention, SUWA asserted that (1) the proposed Low

Corridor rail line would traverse portions of the North Cedar Mountains identified by SUWA

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as possessing wilderness character and suitable for wilderness designation under the

Wilderness Act of 1964 (SUWA Contentions at 2); and (2) construction and operation of the

proposed rail line would irreversibly impair the asserted wilderness character of this area

of the North Cedar Mountains (id. at 4-5). SUWA concluded that PFS had failed to develop

and analyze a meaningful range of alternatives to the proposed Low Corridor rail line that

would protect the asserted wilderness character of the North Cedar Mountains. Id. at 5-6.

B. Applicable Legal Standards

2.3. Three statutes, the National Environmental Policy Act of 1969, as amended

(“NEPA”), the Federal Land Policy and Management Act of 1976, as amended (“FLPMA”),

and the Wilderness Act of 1964, which defines “wilderness” for purposes of the FLPMA, set

forth the legal standards relating to Contention SUWA B. These legal standards are set

forth below. We begin by identifying the Commission regulations implementing NEPA.

2.4. In 10 C.F.R. Part 51, the Commission has established a comprehensive set

of regulations addressing its responsibilities under NEPA. An applicant for an ISFSI

pursuant to 10 C.F.R. Part 72 must file an environmental report. 10 C.F.R. §§ 51.60(b)(iii)

and 51.45. Following the environmental scoping process, the Staff must issue a draft

environmental impact statement (“EIS”), which is to include a preliminary analysis that

considers and weighs the environmental effects of the proposed action; the environmental

impacts of alternatives to the proposed action; and alternatives available for reducing or

avoiding adverse environmental effects. 10 C.F.R. §§ 51.70 and 51.71(d). The Staff then

must issue its Final EIS, based on a review of information provided by the applicant,

information provided by commentors on the Draft EIS, and information and analysis which

the Staff itself obtains. 10 C.F.R. § 51.97(c).

2.5. NEPA requires federal agencies to take a “hard look” at environmental

consequences, as well as reasonable alternatives to the proposed action. See Louisiana

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Energy Services, L.P. (Claiborne Enrichment Center), CLI-98-03, 47 NRC 77, 89 (1998)

(“LES”); Boston Edison Co. (Pilgrim Nuclear Generating Station, Unit 2), ALAB-479, 7 NRC

774, 779 (1978). Consideration of alternatives has been referred to as the “linchpin” of the

entire EIS. New England Coalition on Nuclear Pollution v. NRC, 582 F.2d 87, 95 (1st Cir.

1978). An EIS must “rigorously explore . . . all reasonable alternatives.” Id. (emphasis in

original).

2.6. In assessing the adequacy of an agency’s discussion of the impacts of a

proposed action and any reasonable alternatives set forth in an EIS, a “rule of reason” test

is employed to determine whether the EIS contains “a reasonably thorough discussion of

the significant aspects of probable environmental consequences.” Hells Canyon Alliance

v. United States Forest Service, 227 F.3d 1170, 1177 (9th Cir. 2000), citing Neighbors of

Cuddy Mountain v. United States Forest Service, 137 F.3d 1372, 1376 (9th Cir. 1998); see

All Indian Pueblo Council v. United States, 975 F.2d 1437, 1445 (10th Cir. 1992); Maine

Yankee Atomic Power Co. (Maine Yankee Atomic Power Station), ALAB-161, 6 AEC 1003,

1011-12 (1973). The rule of reason governs “which alternatives the agency must discuss”

and “the extent to which it must discuss them.” Tongass Conservation Society v. Cheney,

924 F.2d 1137, 1141-42 (D.C. Cir. 1991), quoting Natural Resources Defense Council, Inc.

v. Hodel, 865 F.2d 288, 294 (D.C. Cir. 1988) (emphasis in original). When reviewing a

license application filed by a private applicant, a federal agency may appropriately “accord

substantial weight to the preferences of the applicant and/or sponsor in the . . . design of

the project.” Hydro Resources, Inc. (P.O. Box 15910, Rio Rancho NM 87174), CLI-01-4,

53 NRC 31, 55 (2001), citing Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 197

(D.C. Cir.), cert. denied, 502 U.S. 994 (1991); LES, CLI-98-3, 47 NRC at 104, citing City of

Grapevine v. DOT, 17 F.3d 1502, 1506 (D.C. Cir.), cert. denied, 513 U.S. 1043 (1994).

NEPA does not “require agencies to analyze the environmental consequences of

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alternatives it has in good faith rejected as too remote, speculative, or . . . impractical or

ineffective.” Custer County Action Ass’n v. Garvey, 256 F.3d 1024, 1039 (10th Cir. 2001),

quoting Colorado Envtl. Coalition v. Dombeck, 185 F.3d 1162, 1174 (10th Cir.1999),cert.

denied, 122 S.Ct. 1063 (2002). The standards applicable to analysis of alternative routes

are the same as those which apply generally. Compare Tongass, 924 F.2d at 1141-42 (site

alternatives) with Custer County, 256 F.3d at 1039-41 (alternative airspace configurations

and usage for military training), Concerned Citizens Alliance, Inc. v. Slater, 176 F.3d 686,

705-06 (transportation plan alternatives), and Friends of Boundary Waters Wilderness v.

Dombeck, 164 F.3d 1115, 1128-29 (alternative visitor and motorboat use restriction plans).

Finally, for those alternatives that have been eliminated from detailed study, the EIS should

“briefly discuss” why they were ruled out. LES, CLI-98-3, 47 NRC at 104, citing 40 C.F.R.

§ 1502.14(a).

2.7. The FLPMA required the Secretary of DOI to prepare an inventory of

certain public lands, and review, by October 21, 1991, those roadless areas including five

thousand or more acres that were identified by the inventory as having wilderness

characteristics. 43 U.S.C. §§ 1711, 1782. The FLPMA defines “wilderness characteristics”

by incorporating the provision in the Wilderness Act of 1964 that defines “wilderness.” That

provision defines “wilderness” as:

an area where the earth and its community of life areuntrammeled by man, where man himself is a visitor whodoes not remain. An area of wilderness is further defined tomean . . . an area of undeveloped Federal land retaining itsprimeval character and influence, without permanentimprovements or human habitation, which is protected andmanaged so as to preserve its natural conditions and which(1) generally appears to have been affected primarily by theforces of nature, with the imprint of man’s work substantiallyunnoticeable; (2) has outstanding opportunities for solitudeor a primitive and unconfined type of recreation; (3) has atleast five thousand acres of land or is of sufficient size as tomake practicable its preservation and use in an unimpaired

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condition; and (4) may also contain ecological, geological, orother features of scientific, education, scenic, or historicalvalue.

16 U.S.C. § 1131(c). The FLPMA further directed the Secretary to report to the President

a recommendation as to the suitability or nonsuitability of each area identified by the

inventory (which was performed by BLM) for preservation as wilderness. 43 U.S.C.

§ 1782(a). See generally, Utah v. Babbitt, 137 F.3d 1193, 1197-99 (10th Cir. 1998)

(describing how BLM implemented the FLPMA).

C. Evidence Adduced at Hearing

1. Testimony Presented

2.8. Before any witnesses testified at the hearing, the Staff offered the FEIS in

evidence pursuant to 10 C.F.R. § 51.104(a)(1). Without objection, the Board admitted the

FEIS into evidence in the proceeding as Staff Exhibit E (“Staff Exh. E”). Tr. 4561-62.

2.9. The Applicant presented three witnesses in support of the application.

These were: (1) Mr. John Donnell, a Licensed Professional Engineer (“PE”), who is the

Project Director for PFS, and is responsible for the execution and integration of the legal

and technical activities of the PFS project (“Testimony of John Donnell on Contention

SUWA B–Railroad Alignment Alternatives” (“Donnell”), Post Tr. 4564 at 1); (2) Mr. Douglas

Hayes, a Civil Design Engineer for Stone & Webster–a Shaw Group Company, who is the

Lead Railroad Design Engineer on the PFS project, and is responsible for layout and

development of construction drawings and railroad construction specifications for the

proposed Low Corridor rail line. (“Testimony of Douglas Hayes on Railroad Alignment

Alternatives Contention SUWA B” (“Hayes”), Post Tr. 4564 at 1-2); and (3) Ms. Susan

Davis, who is a Senior Environmental Scientist for Stone & Webster–a Shaw Group

Company, who assessed the impacts of the PFS transportation option, including those on

vegetation, wildlife, and threatened and endangered species. (“Testimony of Susan Davis

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on Railroad Alignment Alternatives Contention SUWA B” (“Davis”), Post Tr. 4564 at 1-2).

In addition, following the presentation of other parties’ testimony on this contention, PFS

presented oral rebuttal testimony by Mr. Hayes and Ms. Davis. Tr. 4973-78.

2.10. Applicant witness John Donnell received a Bachelor of Science degree from

the University of Toledo where he majored in Electrical Engineering. Donnell, Post

Tr. 4564, at 1; Curriculum Vitae attached to Donnell (“Donnell Qualifications”) at 2. He is

a registered professional engineer. Donnell Qualifications at 2. Mr. Donnell has 21 years

of experience in nuclear project management and engineering, with experience in site

selection; ISFSI storage technology assessment, selection, and bid specification; ISFSI

project scoping, staffing, and licensing; design; and budget and schedule control. Id. at 1-2.

As Project Manager for the proposed PFSF, Mr. Donnell is responsible for the engineering,

design, budget, and schedule control for the project. Id. In addition, he is knowledgeable

about PFS’s plan for the construction and operation of a railroad from the proposed PFSF

to an interconnection with the Union Pacific Railroad at Low Junction, in Utah, and

alternative rail alignments to service the proposed PFSF. Donnell, Post Tr. 4564, at 1.

Mr. Donnell has visited the Low Corridor area a number of times over the course of his work

on the PFS project. Id. The Licensing Board finds that Mr. Donnell is familiar with the

design and alignment of the proposed Low Corridor rail line, and the conditions in the area

near that proposed line.

2.11. Applicant witness Douglas Hayes studied Industrial Engineering at Fresno

City College, Fresno, California. Hayes, Post Tr. 4564, at 1; Curriculum Vitae attached to

Hayes (“Hayes Qualifications”) at 1. He is a Registered Land Surveyor and a Certified

Engineering Technician. Hayes Qualifications at 1. He has more than 40 years of

experience in surveying and engineering civil projects, including access and site road

design of asphalt, concrete, and gravel roads, including earthwork, structural and drainage

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considerations, railroad loading, unloading and transportation for heavy and light rail and

site development, and experience performing geodetic surveys. Id.; Hayes, Post Tr. 4564

at 1-2. Mr. Hayes has designed portions of rail lines or spurs on at least a dozen projects,

and has performed earthwork design on numerous projects, with one, the Denver

International Airport, involving approximately 113,000,000 cubic yards of earthwork. Hayes

Qualifications at 2-9. Based on his extensive experience, the Licensing Board finds Mr.

Hayes to be well-qualified as an expert witness on the subjects of railroad design

engineering and earthwork.

2.12. Applicant witness Susan Davis received a Bachelor of Science degree from

the University of New Hampshire where she majored in Wildlife Management. Davis, Post

Tr. 4564, at 1; Curriculum Vitae attached to Davis (“Davis Qualifications”) at 2. She has six

years of experience in environmental research and consulting, preparing environmental

impact assessments for a variety of infrastructure development projects, including preparing

impact assessments of the following resource areas: wetlands, forests, other vegetation,

wildlife, fisheries, and state and federally listed threatened and endangered species. Davis

Qualifications at 1. Ms. Davis has prepared impact assessments for sites in mountain,

desert, coastal and marine environments. Id. She has participated in alternatives analysis

for new natural gas pipeline routing, including performing wetland function and value

assessments. Id. Ms. Davis has performed field work including wetland delineation, wildlife

habitat evaluations, wetland function and value assessment, and rare species surveys for

reptiles, amphibians, and insects. Id. In performing her duties, Ms. Davis has visited the

area near the proposed Low Corridor rail line, and is familiar with that area. Davis, Post

Tr. 4564 at 2-3; Tr. 4616-17, 4619. Ms. Davis has prepared environmental analyses on a

wide variety of projects. Davis Qualifications at 2-8. The Licensing Board finds Ms. Davis

to be well-qualified as an expert witness on the subject of environmental impact analysis,

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particularly with respect to wetlands, wildlife habitat, and evaluation of alternatives. In

addition, the Board finds that Ms. Davis is familiar with the conditions in the area near the

proposed Low Corridor rail line.

2.13. The Staff presented a panel of four witnesses concerning this contention.

These were: (1) Britta N. Laub, an Outdoor Recreation Planner for the DOI, BLM, Salt Lake

Field Office (“SLFO”), who assisted the Staff in its evaluation of the potential environmental

impacts related to the Applicant’s proposed construction and operation of the transportation

facilities associated with the proposed PFSF and alternatives to those facilities, and

assisted in the preparation of the Staff’s FEIS; (2) Kenneth E. McFarland, a principal

engineer with Washington Infrastructure Services, Inc., in San Ramon, California, which is

a third party contractor with the STB, who reviewed and verified the amount of cut and fill

necessary to construct both the Applicant’s proposed Low Corridor rail line and the west

valley rail alternative, and reviewed the engineering issues associated with rail line

alternatives originating north of Interstate 80 (“I-80"), and the quantities of excavation and

embankment (“cut and fill”) materials associated with a rail line alternative, suggested by

SUWA, that would lie approximately two miles to the east of the Applicant’s proposed Low

Corridor rail line; (3) Alice B. Stephenson, an Environmental Specialist for the DOI, BLM,

SLFO, who assisted the NRC Staff in its evaluation of the potential environmental impacts

related to the Applicant’s proposed construction and operation of the transportation facilities

associated with the proposed PFSF and alternatives to those facilities, and assisted in the

preparation of the Staff’s DEIS and FEIS; and (4) Gregory P. Zimmerman, the Leader of

the Environmental Impact Analysis Group in the Environmental Sciences Division at the

Oak Ridge National Laboratory (“ORNL”), in Oak Ridge, Tennessee, who assisted the NRC

Staff in its evaluation of the potential environmental impacts related to the Applicant’s

construction and operation of the proposed PFSF and its associated transportation

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facilities, and assisted in the preparation of the Staff’s DEIS and FEIS. “NRC Staff

Testimony of Britta N. Laub, Kenneth E. McFarland, Alice B. Stephenson, and Gregory P.

Zimmerman Concerning Contention SUWA B (Rail Line Alignment Alternatives)” (“Laub et.

al.”), Post Tr. 4653, at 1-5.

2.14. Staff witness Britta N. Laub received a Bachelor of Science degree from the

University of Utah where she majored in Parks and Recreation Management. Laub et. al.,

Post Tr. 4653, at 2; “Statement of Professional Qualifications” of Britta N. Laub (“Laub

Qualifications”). She has approximately 10 years of experience as an outdoor recreation

planner with BLM, including experience processing applications for special recreation

permits. Laub Qualifications. Her experience in processing such applications includes

public contact; application review; completion of National Environmental Policy Act

requirements and decision record preparation; permit issuance and monitoring; and

bonding and post use reporting. Id. Ms. Laub has provided recreation, off-highway vehicle,

and visual resource management and wilderness information, requirements, and mitigation

measures for field office NEPA documents. Id. She has prepared categorical exclusions

and environmental assessments, and determined the adequacy of NEPA documentation

as needed in support of recreation and wilderness program projects. Id. Ms. Laub also

served as a Wilderness Coordinator with BLM Utah State Office, in which she was

temporarily assigned to the Utah Statewide Wilderness Study Area Planning Team. Id.

She has experience through this position in preparing a statewide environmental impact

statement and multiple plan amendments to consider the establishment of new wilderness

study areas. Id. In doing so, she has compiled field data for assigned locations and

applied that information in the NEPA/planning process. She has also taken courses in

wilderness management. Tr. 4666. In the course of performing her duties, Ms. Laub has

visited the North Cedar Mountains area tens of times. Tr. 4664. The Licensing Board finds

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Ms. Laub to be well-qualified as an expert witness on the subjects of outdoor recreation,

environmental impact analysis, and wilderness assessment. The Board also finds that

Ms. Laub is familiar with the conditions in the area near the proposed Low Corridor rail line.

2.15. Staff witness Kenneth E. McFarland received a Bachelor of Science degree

from the University of Washington where he majored in Civil Engineering, and a Master of

Science in Civil Engineering from San Jose State University. “Statement of Professional

Qualifications” of Kenneth E. McFarland (“McFarland Qualifications”) at 1 (attached to Laub

et. al., Post Tr. 4653). He is a registered professional engineer in twelve jurisdictions.

McFarland Qualifications at 1. He is also a member of the American Railway Engineering

and Maintenance-of-Way Association, U.S. Committee on Large Dams. Id. at 7. Mr.

McFarland has 36 years of civil engineering experience, 32 years of which have been spent

on rail, transit, and water resources projects. Id. at 1. His experience includes trackwork

and alignment design, civil engineering design, cost estimating, engineering supervision,

survey control, contract administration and construction management activities. Id. Mr.

McFarland has experience working on 20 rail projects. Id. at 1-5. The Licensing Board

finds Mr. McFarland to be well-qualified as an expert witness on the subjects of rail line

trackwork, rail line alignment design, and rail line civil engineering design.

2.16. Staff witness Alice B. Stephenson received a Bachelor of Science degree

from Colorado State University where she majored in Economics. “Statement of

Professional Qualifications” of Alice B. Stephenson (“Stephenson Qualifications”) at 1

(attached to Laub et. al., Post Tr. 4653). Ms. Stephenson has 13 years of experience as

an Environmental Specialist in the BLM SLFO. Id. She has experience in coordination and

implementation of NEPA reviews, involving preparation and/or review of Environmental

Assessments (EAs) and Environmental Impact Statements (EISs) and providing policy and

program direction for implementation of existing office land use plans. Laub et. al., Post

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Tr. 4653 at 3; Stephenson Qualifications at 1. Ms. Stephenson has experience providing

guidance on the NEPA process, including document preparation and content requirements,

and providing analytical and technical review of EAs and EISs, both in-house to BLM and

third-party submissions. Laub et. al., Post Tr. 4653 at 3; Stephenson Qualifications at 1.

She also has experience maintaining current land use plans; assuring that all proposed

projects, both BLM and third party, are within the scope of the current plan; and monitoring

all steps for completing land use plan amendments. Laub et. al., Post Tr. 4653 at 3;

Stephenson Qualifications at 1. Ms. Stephenson has experience providing guidance and

expertise on all planning matters, including the relationship between NEPA and the FLPMA.

Laub et. al., Post Tr. 4653 at 3; Stephenson Qualifications at 1. In the course of performing

her duties, Ms. Stephenson has visited the North Cedar Mountains area 10-15 times.

Tr. 4664. The Licensing Board finds Ms. Stephenson to be well-qualified as an expert

witness on the subjects of environmental impact analysis, and the relationship between

NEPA analysis and the FLPMA. In addition, the Board finds that Ms. Stephenson is familiar

with the conditions in the area near the proposed Low Corridor rail line.

2.17. Staff witness Gregory P. Zimmerman received both a Bachelor of Science

degree and a Master of Science degree from the University of Tennessee, Knoxville, where

he majored in Mechanical Engineering. “Statement of Professional Qualifications” of

Gregory P. Zimmerman (“Zimmerman Qualifications”) at 1 (attached to Laub et. al., Post

Tr. 4653). Mr. Zimmerman has over 20 years of experience at ORNL in risk and safety

analyses, radioactive waste management, and environmental impact assessment.

Zimmerman Qualifications at 1. Mr. Zimmerman’s experience includes coordinating and

supervising the technical progress of a multidisciplinary team of individuals who conduct

environmental impact analyses and assessments for a variety of federal agencies. Id. His

managerial responsibilities include the development of schedules, budgets, and work

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7 Dr. Catlin does not claim to be familiar with how railroads are constructed(continued...)

assignments, as well as technical oversight, quality control, preparation, and assembly of

final project deliverables and documents, especially including environmental impact

statements and assessments. Id. The Licensing Board finds Mr. Zimmerman to be well-

qualified as an expert witness on the subjects of environmental impact analysis, oversight

and coordination of such analysis, and EIS preparation.

2.18. SUWA presented one witness, Dr. James C. Catlin, in support of its

contention. Dr. Catlin is project director of the Wild Utah Project, based in Salt Lake City,

Utah, and provides conservation biology and computer mapping services to the

conservation community in Utah. “Testimony of James C. Catlin on the Wilderness

Character of the North Cedar Mountains Contention SUWA B” (“Catlin”), Post Tr. 4795,

at 1. In addition, following PFS’s oral rebuttal testimony by Mr. Hayes and Ms. Davis,

SUWA presented oral rebuttal testimony by Dr. Catlin. Tr. 4980-81.

2.19. SUWA witness James Catlin received a Bachelor of Science degree from

Oregon State University where he majored in Electrical and Electronics Engineering, a

Master of Science in Civil Engineering from the University of Utah, and a Ph.D. from the

University of California at Berkeley, Department of Environmental Science, Policy, and

Management. Exhibit SUWA 1 (Resume of James Catlin) at 1 (attached to Catlin, Post

Tr. 4795). Dr. Catlin’s Ph.D. dissertation concerned the use of GIS (geographic information

systems) and how it influenced land use planning for the BLM. Tr. 4814. Dr. Catlin has 20

years of experience in public land issues. Catlin, Post Tr. 4795 at 1; Tr. 4820. Dr. Catlin

has also assisted in editing two books concerning wilderness issues. SUWA Exh. 1 at 2.

The Licensing Board finds Dr. Catlin to be well-qualified as an expert witness on the subject

GIS mapping as it relates to public land use planning.7 The Board also finds that Dr. Catlin

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7(...continued)(Tr. 4809); does not claim to be knowledgeable on the cost of building railroads(Tr. 4809-12); and does not claim to be a biologist (Tr. 4814).

8 Dr. Catlin does not identify any training or experience in environmental impactanalyses in his resume (SUWA Exh. 1), nor does he claim any expertise with respect tothe treatment of wilderness issues in such analyses.

is qualified, based on his experience, as an expert on the subject of the criteria for defining

wilderness characteristics.8

2.20. As more fully set forth below, having considered the testimony and other

evidence presented by the parties, we find that the evidence supports a conclusion that the

Staff has considered all reasonable rail alignment alternatives to the Low Corridor rail line

and their environmental impacts, as set forth in the FEIS, and, therefore, has satisfied the

requirements of 10 C.F.R. Part 51 and NEPA with respect to Contention SUWA B. Our

evaluation of this matter follows in the discussion below.

2. Description of Skull Valley, the Proposed Rail Line, the AlternativesConsidered by the Staff, and the Area Affected

2.21. In making our determination as to whether the Staff considered an adequate

range of rail alignment alternatives, we will weigh the parties’ testimony on the alternatives

considered; how the proposed rail line and the alternatives might affect any wilderness

characteristics of the areas through which they cross; and their other environmental

impacts. We begin by describing Skull Valley, the proposed Low Corridor rail line, the

alternatives considered by the Staff, and the areas through which the proposed rail line and

the alternatives cross, all of which are not in dispute.

2.22. Skull Valley is a topographical valley located approximately 50 miles west

of Salt Lake City, Utah, and about 22 miles east of the Great Salt Lake Desert. As shown

in Figure 1.1 of the FEIS, Skull Valley is bounded on the east by the Stansbury Mountains

and on the west by the Cedar Mountains. Staff Exh. E at 1-2. The northern end of Skull

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Valley lies just south of the Great Salt Lake. The valley is generally about 10 miles wide

(east-to-west), although the width varies at different latitudes, and is about 30 miles long

(north-to-south). Laub et. al., Post Tr. 4653, at 8. The proposed project area within Skull

Valley is shown in Figure 1.2 of the FEIS. Staff Exh. E at 1-3. The floor of Skull Valley at

the location of the proposed PFS Facility is at an elevation of approximately 4,450 to 4,490

feet above mean sea level. Laub et. al., Post Tr. 4653, at 9.

2.23. Existing transportation facilities in or near Skull Valley are limited to a single

rail line and a few paved roadways. As shown in Figure 1.2 of the FEIS, I-80, running in

a generally east-west direction, lies at the northern end of Skull Valley, approximately 25

miles north of the location of the proposed PFSF. Staff Exh. E at 1-3. The Union Pacific

main rail line, also running in a generally east-west direction, similarly lies at the northern

end of Skull Valley to the north of I-80, except where the rail line passes under (and south

of) the interstate near the proposed Low (or Skunk Ridge) rail siding to the west of Skull

Valley. In addition, a spur from the Union Pacific main line also passes under (and south

of) I-80 in the valley to the east of the Stansbury Mountains. Id. A two-lane, paved road

(identified as "Skull Valley Road" in Figure 1.2 of the FEIS) runs in a generally north-south

direction in the eastern portion of the valley, passing approximately 2 miles east of the

proposed PFSF. Laub, et al., Post Tr. 4653 at 9; Staff Exh. E, Figure 1-2, at 1.3.

2.24. The proposed Low Corridor rail line would run approximately 32 miles from

the Union Pacific main rail line in a generally southerly direction toward the proposed PFSF.

The proposed rail line would originate just south of I-80 near Low, Utah, at the northern end

of the Cedar Mountains. The proposed right-of-way for the new rail line generally follows

the 4380-foot elevation (above mean sea level) topographical contour along the eastern

foot of the Cedar Mountains, which lies on the western side of Skull Valley; thus, the

proposed Low Corridor rail line would run along the western side of Skull Valley. Laub, et

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al., Post Tr. 4653 at 9-10; see Staff Exh. E, § 2.1.1.3, at 2-14 and 2-15; Staff Exh. E

Figure 1.2, at 1-3.

2.25. The specific details of the proposed rail line are described in Section 2.1.1.3

of the FEIS (id. at 2-14 and 2-15), and are depicted in cross-section in Figure 2.5 of the

FEIS (id. at 2-17). As described in Section 2.1.1.3 of the FEIS (id. at 2-14 and 2-15), the

right-of-way would be 200 feet wide, and the rail bed would be 40 feet wide. This 40-foot

width would contain a 17-foot wide area filled with ballast (i.e., 2-inch maximum sized rock

for use as base material for the cross-ties and rails), which rests on a 34 foot wide layer of

sub-ballast material, and a 3 foot wide cleared area on each side of the sub-ballast. Laub

et. al., Post Tr. 4653 at 10. An additional “temporary use area” of 50 feet on each side of

the 200-foot permanent right-of-way would also be needed for topsoil stockpiles and other

construction uses. Any of the remaining right-of-way which is disturbed during construction

would be revegetated using the native seed mix recommended by the BLM. The top of the

completed rail line would be approximately 4.5 feet above the surrounding terrain. Id. at 11.

2.26. The rail line would cross 32 arroyos (i.e., gullies or gulches cut by ephemeral

streams) at which drainage culverts designed to address flooding would be installed. The

rail line would cross two improved gravel roads, as well as seven dirt roads and/or off-

highway vehicle (“OHV”) trails. At-grade crossings would be constructed so as not to impair

travel on these roads and trails. The rail line would not be fenced, and no access roads

along the rail line would be provided. Access for maintenance purposes would be

accomplished by existing roads in the area and by railroad vehicles moving along the track.

Id. at 11-12.

2.27. As described in Section 2.2.4.2 of the FEIS, the Staff considered three rail

alignment alternatives: (1) a new rail line originating from somewhere along the existing

Union Pacific main rail line at the northern end of Skull Valley and north of I-80, (2) a new

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rail line originating from an existing rail line east of the Stansbury Mountains, to the east of

Skull Valley, and (3) a “west valley rail alternative” that would follow the alignment of the

Applicant’s Low Corridor rail line, except for a segment about 6.5 miles in length, where it

would deviate about 2000 to 3000 feet to the east of the proposed Low Corridor rail line so

as to avoid an area that has been described by SUWA as the “North Cedar Mountains

Area” (“NCMA”). Staff Exh. E at 2-47 to 2-51. The first two of these alternatives included

consideration of a rail alignment in the eastern portion of Skull Valley, parallel to the route

of the existing Skull Valley Road. The west valley rail alternative and the proposed Low

Corridor rail line are shown on a map submitted with the Staff’s witnesses’ testimony (Staff

Exhibit G). Laub et. al., Post Tr. 4653 at 12.

2.28. In their testimony, Staff witnesses also discussed an alternative suggested

by SUWA that might run “two miles to the east “ of the proposed Low Corridor rail line. Id.

at 32, citing “Second Declaration of Jim Catlin For Petitioner [SUWA]” attached to the

“Reply of [SUWA] to Staff and Applicant Responses to SUWA’s Petition to Intervene,

Request for Hearing and Contentions” (Dec. 8, 1998). Such an alternative would appear

to run through the mud flats that begin approximately one mile to the east of the proposed

Low Corridor rail line, as is indicated on Staff Exhibit G. Such an alternative would also

appear to pass through lands that are owned, managed, or held in trust by the State of

Utah. Id. SUWA’s witness did not specify further details regarding this alternative in his

testimony. See Catlin, Post Tr. 4795, at 7-8; Tr. 4845-49.

2.29. The NCMA lies at the northern end of the Cedar Mountains, and

encompasses an irregular area approximately 7 miles long (north to south) by 5 miles wide

(east to west). The NCMA lies to the north of the existing Cedar Mountain Wilderness

Study Area, which is an area designated as such and defined by the BLM. The NCMA is

shown on Staff Exhibit G.

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9 These matters are in issue here only to the limited extent they must be evaluatedto compare the impacts of the Low Corridor rail line to those of any particular alternativeconsidered. Otherwise, consideration of such impacts is outside the scope of ContentionSUWA B. See LBP-99-3, 49 NRC at 53 (rejecting Contention SUWA A, which asserted afailure to consider adequately the impacts of the proposed Low Corridor rail line.)

3. Impacts of Proposed Low Corridor Rail Line

a. Overall evaluation

2.30. Chapter 5 of the FEIS addresses the environmental impacts of the proposed

Low Corridor rail line. FEIS Chapter 5 sets forth the NRC Staff’s evaluation of the impacts

in the areas of geology, minerals and soils; water resources; air quality; ecological

resources; socioeconomic and community resources; cultural resources; human health

impacts of transporting spent nuclear fuel; noise; visual qualities; recreation; and wildfires.

See Staff Exh. E, Ch. 5. In addition, FEIS Section 5.9 discusses the environmental impacts

of decommissioning the proposed rail line. Id. at 5-74; Laub et. al., Post Tr. 4653 at 13.

2.31. As set forth in the FEIS, the NRC Staff and the cooperating agencies

concluded that the potential environmental impacts in the aforementioned areas would be

small, except for the areas of (1) water resources (small to moderate impacts from

flooding), (2) air quality (small to moderate impacts from dust generated during construction

near I-80), (3) socioeconomics (small to moderate land use impacts to holders of grazing

allotments and to wildlife use of watering resources within the project area), (4) cultural

resources (small to moderate impacts to portions of eight important historic properties), and

(5) scenic qualities (moderate impacts to recreational viewers and possibly to residents of

Skull Valley). Laub et. al., Post Tr. 4653 at 13. No party contests these findings.9

b. Earthwork evaluation

2.32. The earthwork quantities needed to construct the Low Corridor rail line are

approximately 885,000 cubic yards of excavation (cut) and approximately 630,000 cubic

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yards of embankment (fill). This results in approximately 255,000 cubic yards of extra cut

material. The Applicant has proposed to place this excess material in the areas adjacent

to the new rail line, as additional embankment. Laub et. al., Post Tr. 4653 at 15. The Low

Corridor rail line was laid out in a manner that attempted to balance cut and fill throughout

its length, while maintaining grades not to exceed 1.5 percent. Id. These facts are not in

dispute.

c. Wilderness evaluation

2.33. As set forth above, the FLPMA required BLM to perform an inventory of

certain public lands having certain characteristics. In sum, BLM was to study the suitability

of public lands for preservation as wilderness based on four criteria, namely: (1) size

(contains at least 5,000 acres); (2) naturalness (affected primarily by the forces of nature,

with the imprint of man’s work substantially unnoticeable); (3) outstanding opportunities for

solitude or a primitive and unconfined type of recreation; and (4) may contain supplemental

values (ecological, geological, or other features of scientific, educational, scenic, or

historical value). For an area to qualify for study under the FLPMA, it must satisfy all of the

first three of these criteria; satisfaction of the fourth criterion is optional. See Laub et. al.,

Post Tr. 4653 at 15-16; cf. Sierra Club v. Hodel, 848 F.2d 1068, 1085 (10th Cir. 1988)

(quoting district court explanation of BLM’s application of FLPMA criteria in designating

wilderness study areas).

2.34. As Dr. Catlin stated during cross-examination, the NCMA is approximately

14,000 acres in size. Tr. 4839. The proposed rail line would intersect the easternmost

edge of the NCMA, and would separate a parcel that is about 2.5 miles long (north to south)

by 0.4 mile wide (east to west), from the remainder of the NCMA. Laub et. al., Post

Tr. 4653 at 12-20. As Dr. Catlin indicated, the area between the eastern boundary of

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NCMA and the proposed Low Corridor rail line would be approximately 800 acres.

Tr. 4838. There is no dispute about these facts.

2.35. As stated by Dr. Catlin, the remaining portion of the NCMA would be

approximately 13,200 acres, and this 13,200 acre parcel would still meet the size criterion

of 5,000 acres for wilderness set in the Wilderness Act of 1964. Tr. 4839-40. Further,

having a railroad on the border of a wilderness area does not exclude that area from being

considered as wilderness. Tr. 4841. There is no dispute about these facts. Based on the

foregoing, the Licensing Board finds that construction and operation of the proposed Low

Corridor rail line would “preserve the wilderness character and the potential wilderness

designation” of this 13,200 acre portion of the NCMA, and no alternative will offer any

benefit in this regard. Further, the Licensing Board finds that only the 800 acre parcel

bounded by the proposed Low Corridor rail line and the eastern boundary of the NCMA

could be affected with respect to wilderness issues by the proposed rail line.

2.36. Because the wilderness characteristics of 13,200 acres of the NCMA cannot

be affected by construction and operation of the proposed rail line, this Licensing Board

need not determine whether that area does, in fact, possess wilderness characteristics

(other than size) as defined in the Wilderness Act of 1964. As set forth below, however,

it will be necessary for the Board to reach this question with respect to the 800 acre parcel

that could be affected with respect to wilderness characteristics by the proposed Low

Corridor rail line.

2.37. The BLM has determined that the NCMA does not possess wilderness

characteristics. BLM performed an intensive inventory of the North Cedar Mountains in

1979 for wilderness characteristics. While the area met the FLPMA’s size requirement, as

discussed above, it was found to lack each of the other three wilderness characteristics

defined in the Wilderness Act and described above in Paragraph 2.33. Based on the

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wilderness characteristics analysis, the BLM in 1980 recommended that the North Cedar

Mountains not be designated a wilderness study area. Laub et. al., Post Tr. 4653 at 16-17.

In its analysis of the impacts of alternatives on wilderness values, the FEIS describes this

1980 BLM determination. Staff Exh. E at 2-49.

2.38. Pursuant to BLM Manual H-6310-1 (“Wilderness Inventory Handbook” or

“WIH”), on April 11, 2001, SUWA submitted a proposal to the BLM, suggesting that the

proposal contained “supplemental and new information” that would cause the BLM to revisit

the 1980 North Cedar Mountains wilderness determination. The BLM considered SUWA’s

April 2001 proposal, in accordance with the BLM Wilderness Inventory Handbook.

Pursuant to the WIH, proposals must contain the following: (1) A map identifying specific

boundaries, (2) a detailed narrative that describes the suggested wilderness characteristics

of the area, and (3) photographic documentation. The SUWA proposal contained the

required components as outlined in the WIH; however, the proposal did not describe or

present information that significantly differed from information in prior BLM inventories

regarding the wilderness values of the area. Rather, the SUWA submission primarily

disagreed with BLM’s prior (1979-1980) intensive wilderness inventory, but did not provide

significant new information that would change the BLM’s 1980 determination and did not

provide information to support a re-evaluation of the area. Laub et. al., Post Tr. 4653 at 17.

This information is summarized in the analysis in the FEIS. Staff Exh. E at 2-49.

2.39. In view of the above, a determination was made on May 7, 2001 by the BLM

Salt Lake Field Office Manager that the material provided by SUWA did not constitute

significantly different information to warrant further review of the North Cedar Mountains

wilderness values at that time. See Letter to S. Bloch, SUWA, from G. Carpenter, BLM,

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10 The Licensing Board notes that SUWA has challenged a BLM offering of oil andgas leasing that apparently made the same finding as set forth in Staff Exhibit H. SeeSUWA Exhibit 3; Tr. 4555. The Board also notes that while SUWA’s appeal is pendingbefore the Interior Board of Land Appeals in the leasing proceeding, a stay of BLM’sdecision offering leasing in that proceeding was requested and denied. Tr. 4556.

dated May 8, 2001 (Staff Exhibit H). This determination is not an appealable decision. 10

To date, SUWA has not submitted additional North Cedar Mountain proposals to the BLM.

Laub et. al., Post Tr. 4653 at 17. The FEIS analysis considers this information. Staff

Exh. E at 2-51.

2.40. The Licensing Board observes that the decision of the Atomic Safety and

Licensing Appeal Board in the Yellow Creek proceeding, while not strictly applicable here,

embodies considerations that counsel against our review of the BLM decisions discussed

herein, and, we believe, entitles us to rely on those BLM decisions. See Tennessee Valley

Authority (Yellow Creek Nuclear Plant, Units 1 and 2), ALAB-515, 8 NRC 702 (1978). In

Yellow Creek, the Appeal Board affirmed a Licensing Board decision that the Staff had no

discretion to demand that an applicant perform water monitoring operations above and

beyond those specified by the EPA permit authorizing the discharges. ALAB-515, 8 NRC

at 713. While a statute prohibited the Staff from demanding such monitoring in Yellow

Creek, the considerations that gave rise to that provision apply equally here.

2.41. As the Appeal Board discussed in Yellow Creek, the Congressional mandate

to acquire expertise in developing, setting, and enforcing effluent limitations and water

quality standards had been given to EPA. Id. at 712-13. The Appeal Board stated further

that Federal licensing agencies were to rely on EPA when such matters were involved, and

were not to develop duplicate expertise on their own. Id. at 713. Such agencies were not

to “second-guess” EPA by undertaking independent analyses and setting their own

standards in that area. Id.

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2.42. Here, the NRC has no authority or expertise to determine whether an area

has wilderness characteristics. Rather, an agency charged with such duties by the FLPMA,

BLM, is a cooperating agency in the preparation of the FEIS, and the analysis in the FEIS

summarizes and relies on the BLM’s determinations in its 1980 intensive inventory and its

May 8, 2001, letter to SUWA. The Licensing Board believes that, in these circumstances,

the NRC should rely on the BLM’s final determinations with respect to whether the NCMA

possesses wilderness characteristics or not. Accordingly, the Board relies on the BLM’s

1980 and 2001 determinations, as summarized in the FEIS, to conclude that the NCMA as

a whole lacks wilderness characteristics, and no further analysis of rail alignment

alternatives is required with respect to Contention SUWA B.

2.43. Notwithstanding our reliance on the BLM determinations described above,

we have also carefully evaluated the evidence presented by the parties. Based on our

consideration of that evidence, and as more fully described below, we agree with BLM that

the NCMA in general, and the area of the NCMA that could be affected by the proposed rail

line (amounting to approximately 800 acres) in particular, lacks wilderness characteristics.

The testimony of each party is described below, followed by our evaluation of the evidence.

2.44. In their testimony, Staff witnesses Laub and Stephenson identified in detail

the conditions in the NCMA that formed the bases for the Staff’s conclusion. Laub et. al.,

Post Tr. 4653 at 18-24. Specifically, they testified that the North Cedar Mountains,

especially the eastern area traversed by the proposed rail line, already show the impact of

man through numerous motorcycle paths and other extensions of routes used primarily by

OHVs, including a route running north-south parallel to the proposed rail line. Id. at 18.

They also testified that the area shows the impact of livestock grazing and wildfire, and

described the vegetation in the area. Id. Further, they described specific human activities

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occurring in the NCMA, including drill seeding, mining claims, a system providing drinking

water for wildlife, and a maintenance route. Id. at 19.

2.45. Staff witnesses Laub and Stephenson testified that the NCMA lacks

“naturalness” because the imprint of man’s work is substantially noticeable in the NCMA.

Id. at 20. They testified that, while some interior hillsides are untrammeled by man and are

affected by the forces of nature, a feeling of sublime naturalness is lacking because of the

openness and exposure to other imprints. Id. They conclude, therefore, that the area lacks

the necessary condition of “naturalness.” Id.

2.46. The Staff also introduced into evidence representative photographs of the

condition of the area near the proposed Low Corridor rail line (Staff Exhibits J-O). Tr. 4696.

According to Staff witnesses Laub and Stephenson, these photographs collectively show

that current conditions in this area are consistent with the BLM’s original determination

regarding lack of naturalness. Laub et. al., Post Tr. 4653 at 21.

2.47. Staff witnesses Laub and Stephenson also testified that the NCMA lacks

“outstanding opportunities for solitude or a primitive and unconfined type of recreation.” Id.

at 22. With respect to solitude, they testified that the upper elevations and inner portion of

the NCMA provide scattered opportunities for solitude. Id. They testified further, however,

that the lower, outside portions of the NCMA (including the area near the proposed Low

Corridor rail line) lack outstanding opportunities for solitude, due to the sparse vegetative

cover, relative open terrain and the cumulative effect of many impacts in it. Id.

2.48. With respect to recreation, Staff witnesses Laub and Stephenson testified

that certain opportunities for a primitive and unconfined type of recreation exist in the North

Cedar Mountains, in the form of hunting, horseback riding, hiking, wildlife observation and

sightseeing. Id. They testified further, however, that in and of themselves, these

opportunities may not be described as “outstanding,” because wildlife populations and

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numbers are few; terrain for hiking and horseback riding is not unique in nature and does

not provide outstanding potential for these recreation types; and sightseeing is encumbered

by the many outside activities and interior impacts of man. Id.

2.49. On cross-examination, Staff witnesses Laub and Stephenson maintained

the Staff’s positions that (1) there is no reason to revisit the 1980 BLM decision, and it still

stands (Tr. 4709); (2) the NCMA lacks outstanding opportunities for solitude (Tr. 4721-23);

(3) the scope of the 1996 reinventory of lands identified in H.R. 1500 (which was sponsored

by SUWA) did not include the NCMA (Tr. 4713-14); (3) SUWA’s 2001 submission to BLM

did not contain information significantly different from the 1980 BLM intensive inventory, and

did not warrant reinventory of the NCMA (Tr. 4668, 4710, 4733); (4) the majority of

intrusions into the NCMA lie north of the southern boundary of the NCMA identified by

SUWA in 2001 (Tr. 4734, 4739), and the locations of these intrusions are available in the

1980 BLM determination (Tr. 4742); and (5) BLM’s rejection of SUWA’s 2001 submission

was based, in part, on current information that demonstrated SUWA’s failure to provide

significantly new and different information in accordance with the WIH (Tr. 4732-22,

4743-44, 4775).

2.50. Ms. Laub also explained on cross-examination that the 1980 inventory

included two phases, namely, an “initial inventory,” which would provide a basis to

determine whether the second phase, the “intensive inventory,” was recommended.

Tr. 4764. (The Board notes that it is quite clear that the 1980 BLM determination is based

on the second phase, i.e., the intensive inventory. See Laub et. al., Post Tr. 4653 at 20.)

Ms. Laub also explained that BLM does not compare one area to another in determining

whether each area has wilderness characteristics (Tr. 4716); that an area can be found

lacking in wilderness characteristics but revert to having such characteristics (Tr. 4720);

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and that a right-of-way, including a rail line right-of-way, can function as a boundary for a

wilderness study area (Tr. 4756).

2.51. The Applicant supported the Staff’s position. Applicant witnesses Donnell

and Davis both supported the Staff’s view that the area near the proposed Low Corridor rail

line lacked wilderness characteristics. Specifically, Mr. Donnell testified that he has seen

numerous “jeep” trails and one-track paths that cross the Low Corridor and head in the

general direction of the mountains, and has occasionally seen vehicles using the trails in

the area. Donnell, Post Tr. 4564 at 3. Mr. Donnell also referred to Applicant Exhibit II as

showing such trails. Id. Similarly, Ms. Davis testified that (1) she has observed multiple

“jeep” trails and single-track paths crossing the proposed Low Corridor rail line to provide

vehicle access to the North Cedar Mountains, (2) there is a well-defined dirt road that runs

north to south, roughly parallel to the proposed rail line, (3) there is evidence of recreational

use of these trails and roads, and neighboring lands, and (4) she has occasionally seen

shell casings and other trash left by people who have been in the area. Davis, Post

Tr. 4564 at 5-6. In addition, Ms. Davis also testified that the Low Corridor rail line would not

have a significant impact on wilderness characteristics. Id. at 6. Ms. Davis referred to

Applicant Exhibit GG, which consists of photographs, as showing the area near the

proposed Low Corridor rail line. Id. at 3.

2.52. For its part, SUWA disputed the Staff’s and Applicant’s testimony. SUWA

witness James Catlin testified that the NCMA does not contain substantially noticeable

human impacts and clearly possesses opportunities for solitude and to practice primitive

recreational activities. Catlin, Post Tr. 4795 at 4. With respect to naturalness, Dr. Catlin

simply asserted that the NCMA does not contain substantially noticeable human impacts.

Id. He explained that the boundaries of the NCMA were drawn to exclude all significant

impacts that were the basis for the 1980 BLM determination. Id. at 5.

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2.53. With respect to solitude and recreation, Dr. Catlin stated that the NCMA

possesses topographic features, vegetation, and incised canyons and ridgetops similar to

the Cedar Mountains WSA, and, therefore, BLM should find outstanding opportunities for

solitude and recreation in the NCMA. Id.

2.54. With respect to naturalness, Dr. Catlin stated on cross-examination that

cheatgrass created fire risk problems. Tr. 4858. He then admitted that in part of the NCMA

through which the proposed rail line would cross, cheatgrass was already the dominant

growing plant. Tr. 4859. Dr. Catlin also admitted that he believed the area should be

recovered from its current status. Tr. 4881-82, 4934-35. In discussing restoring the area,

Dr. Catlin indicated that action would be required with respect to “a number of human uses

[in the area] . . . but it’s going to be a difficult process.” Tr. 4943-44, 4963. He also stated

that there is “continued growth of off-road vehicle trails which advocates are trying to

legitimize and propagate through the area.” Tr. 4944. While Dr. Catlin believes that loss

of the natural plant community is caused mostly by cattle grazing (Tr. 4948), he also

indicated that impacts caused by animals do not affect naturalness (Tr. 4942).

2.55. With respect to solitude and recreation, Dr. Catlin admitted on cross-

examination that the area near the proposed rail line lacks incised canyons, pinnacles,

steep cliffs, ridge tops, and abrupt changes in topography. Tr. 4855, 4879. While

Dr. Catlin claimed on redirect that opportunities for solitude in the NCMA are outstanding

(Tr. 4939), he did not state any basis for this claim. See Tr. 4937-4939.

2.56. The Licensing Board finds that Staff and Applicant have provided specific

evidence of facts demonstrating that the NCMA in general and the area near the proposed

Low Corridor rail line in particular lacks naturalness and outstanding opportunities for

solitude or a primitive and unconfined type of recreation. In so finding, we acknowledge

BLM’s role as a cooperating agency in preparing the FEIS, BLM’s duties under the FLPMA

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with respect to wilderness issues, and its expertise on such issues. Therefore, in making

this finding, the Board accords great weight to the 1980 and 2001 BLM determinations, as

presented by Staff witnesses Laub and Stephenson, both of whom are BLM employees.

2.57. The Board also finds that SUWA has not provided evidence of specific facts

relating to naturalness to contradict the evidence presented by the Staff and Applicant. To

the contrary, Dr. Catlin, in discussing restoration of the area, appears to acknowledge

human activities (including the use of off-road vehicle trails) near the proposed Low Corridor

rail line. Moreover, the 1980 BLM determination identified human intrusions north of the

southern boundary of the NCMA, and Dr. Catlin did not attempt to identify the location of

these intrusions or explain why they might not affect naturalness of the NCMA as a whole.

Accordingly, we do not find Dr. Catlin’s testimony regarding naturalness persuasive.

2.58. With respect to the criterion of “outstanding opportunities for solitude or a

primitive and unconfined type of recreation,” Dr. Catlin admitted that there are no “incised

canyons and ridgetops” in the NCMA in the area near the proposed rail line, as set forth

above. The Board finds this consistent with both the Staff’s and Applicant’s testimony, and

the photographs in Staff Exhibits J-O and Applicant Exhibit GG. In addition, SUWA

appears to rely on BLM’s initial inventory in 1979 for the proposition that the NCMA has

outstanding opportunities for solitude. Tr. 4897; SUWA Exh. 7 at unnumbered 8. As

Ms. Laub explained on cross-examination, however, the initial inventory was done to

provide a basis to determine whether a second phase, the “intensive inventory,” should be

performed. Tr. 4764. As discussed above, the intensive inventory documents that

opportunities for solitude in the portion of the NCMA through which the proposed Low

Corridor rail line would pass are not outstanding, and Dr. Catlin did not state a basis for

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11 Dr. Catlin also identified supplemental values (as defined under the WildernessAct’s fourth criterion) that he believes contribute to the NCMA’s suitability as a wildernessarea. Catlin Post Tr. 4795 at 4. As discussed above, Dr. Catlin testified on redirect that thearea near the proposed rail line had the potential to recover its biological and ecosystemvalues. Tr. 4943.

With respect to supplemental values, Staff witnesses Laub and Stephenson testifiedthat rock windows, sawtooth ridges and small caves carved in cliffs and terraces arecommon throughout the northern section of the NCMA. Laub et. al., Post Tr. 4653 at 22.They testified, however, that these are displays cut by either the Bonneville or Provo levelsof ancient Lake Bonneville, and are considered to be typical geological formations, commonto the Bonneville Basin. Id. They concluded, therefore, that these geological features arenot unique to the NCMA and are not particularly significant. Id. The Staff witnesses did notdiscuss any other supplemental values near the proposed Low Corridor rail line.

Supplemental values are optional in determining whether an area has wildernesscharacteristics. See ¶ 2.33, supra. Since we have determined that the evidence showsthat the area does not have the required characteristics of naturalness and outstandingopportunities for solitude or a primitive and unconfined type of recreation, we need notconsider these supplemental values further here.

concluding otherwise. Therefore, we find that Dr. Catlin’s testimony regarding the

wilderness criterion of solitude is not persuasive.11

2.59. Having considered the above testimony, and according due weight to the

1980 and 2001 BLM determinations, the Licensing Board finds that the NCMA as a whole,

and the 800 acre parcel that could be affected by the proposed Low Corridor rail line in

particular, lacks wilderness characteristics, and no rail alignment alternative will preserve

either area for designation as wilderness.

4. Alternatives and Their Impacts

2.60. Notwithstanding that the area through which the proposed Low Corridor rail

line would cross lacks wilderness characteristics, and alternative rail alignments would have

no effect on preserving Congress’s ability to designate such areas as wilderness, the

Licensing Board has considered the parties’ testimony on rail alignment alternatives

considered by the Staff, as set forth below.

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a. Alternatives originating in Skull Valley north of I-80

2.61. The Staff’s evaluation of this alternative is set forth in FEIS Section 2.2.4.2.

Staff Exh. E. at 2-47. Building a new rail line from any location in the northern portion of

Skull Valley other than Skunk Ridge would involve the construction of a new rail siding north

of I-80, thereby creating an unresolved problem as to how the rail line would be able to

cross the interstate to reach the Reservation to the south, as there is no existing rail line

crossing the interstate in such areas. Also, construction of a new rail line in the eastern

portion of Skull Valley, parallel to Skull Valley Road, would create the likelihood for

construction activity to directly impact wetlands (at Horseshoe Springs), existing houses

and ranches, and traffic on Skull Valley Road. This alternative was determined not to be

superior to the proposed Low Corridor rail line. Laub et. al., Post Tr. 4653 at 25.

2.62. The Staff provided a detailed discussion as to why there would be an

unresolved problem in crossing I-80 associated with alternative alignments originating north

of I-80 (see id. at 25-26). Staff witness McFarland testified that, if a connection were made

to the Union Pacific mainline anywhere east of Low, a grade separation would be required

to extend a new alternative rail line to the south. Id. at 25. Mr. McFarland explained that

this could be done in either of two ways: (1) I-80 could be raised and bridged over the new

alternative rail line, or (2) the alternative line could cross over I-80 using a bridge. Id. To

raise I-80, Staff witness McFarland testified that approximately 3600 feet of I-80 could be

reconstructed to pass it over an alternative rail line, in addition to construction of a four lane

50 foot span bridge, and this would require extensive detours of a major interstate highway

while an overpass structure was being built. Id. Mr. McFarland also testified to the effect

that, in order to construct a rail line that passes over the highway, a very long distance

would be needed to raise the rail line over the highway, because the maximum railroad

grade can be no more than 1.5 percent. Id. at 25-26.

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2.63. The Applicant supports the Staff’s position. Donnell, Post Tr. 4564 at 3-5.

SUWA, however, does not address these alignments at all, nor did SUWA raise any issue

with respect to such alignments through cross examination. Accordingly, the Licensing

Board finds that rail alignment alternatives originating north of I-80 in Skull Valley would

involve an unresolved problem in how to cross I-80 to reach the Reservation to the south,

and would entail significant environmental impacts beyond those involved in the Low

Corridor rail line. Based on the foregoing, the Board finds that no further evaluation of such

an alternative is warranted.

b. Alternative originating east of the Stansbury Mountains

2.64. The Staff’s evaluation of this alternative is set forth in FEIS Section 2.2.4.2.

Staff Exh. E at 2-47. A new rail line originating east of the Stansbury Mountains (i.e.,

alternative No. 2, above) would require a new rail corridor around the northern end of these

mountains (i.e., between the mountains and I-80), which would then continue south along

Skull Valley Road. This option would result in significant construction impacts to the

wetlands, houses, ranches, and traffic along Skull Valley Road, as well as substantial

excavation at the northern end of the Stansbury Mountains because of the proximity of the

mountains to the interstate at this location. In addition, operation of the rail line close to

existing wetlands, houses, and ranches in Skull Valley would result in operational impacts

that exceed the impacts of operating the Low Corridor rail line. Laub et. al., Post Tr. 4653

at 26.

2.65. The Applicant supports the Staff’s position. Donnell, Post Tr. 4564 at 3-5.

SUWA does not address these alignments at all, nor did SUWA raise any issue with

respect to such an alignment through cross examination. The Licensing Board finds that,

based upon its significant impacts to wetlands, houses, ranches and traffic, and significant

excavation impacts, no further evaluation of this alternative is warranted.

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c. The West Valley Rail Alignment Alternative

2.66. As one alternative to the proposed Low Corridor rail line, the Staff, as

described in paragraph 2.27, supra, considered a west valley rail alternative, which would

originate at the same location as the proposed Low Corridor rail line (i.e., at Skunk Ridge).

This rail alignment is similar to the Low Corridor rail line with the following exception. At the

point where the proposed rail line curves away from I-80, the curvature would turn less

sharply so that this alternate would move more to the east, away from the Cedar Mountains,

than the proposed Low Corridor rail line. After proceeding southeast for about 2 miles, the

alternate rail line would curve south for about 3 miles, then southwest for one mile to a point

where it would rejoin the proposed Low Corridor rail line alignment. The result is an

alternate alignment 2000 to 3000 feet east of the proposed Low Corridor rail line alignment

for a length of about 6.5 miles. This alternate avoids the area referred to by SUWA as the

NCMA and the mud flats that lie further to the east. Laub et. al., Post Tr. 4653 at 27.

2.67. FEIS Section 2.2.4.2 describes the potential environmental impacts of the

west valley rail alternative. Staff Exh. E at 2-49. According to the Staff, the alignment of

the west valley rail alternative would follow undulating terrain and, over most of its 6.5 mile

length, would be constructed on land with an elevation approximately 100 to 150 feet lower

than the Applicant’s proposed Low Corridor rail line alignment. Laub et. al., Post Tr. 4653

at 28. The west valley rail alternative would have to be built almost entirely on fill material

because of the constraint imposed by a 1.5 percent grade limitation due to locomotive

braking and safety considerations. Id. The rail bed of the west valley alternative route

would therefore have to be built to elevations up to 20 feet above existing grade levels. Id.

This raised rail bed would have a visual impact and could interfere with the access to

existing roads and grazing allotments, the movement of wildlife, and the fighting of wildfires

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in the Cedar Mountains and in the western portion of Skull Valley. Id. These impacts would

exceed the impacts of the proposed Low Corridor rail line. Id.

2.68. Staff witness McFarland testified as to the earthwork necessary for the west

valley alternative, as follows: For the portion of the west valley rail alternative that deviates

from the proposed Low Corridor rail line, the Applicant’s analysis shows that the amount of

material excavated (cut) is about 560,000 cubic yards less than the amount of material that

would be needed for use as embankment (fill) material. Id. at 29. As stated above, there

would be approximately 255,000 cubic yards of excess material that is excavated for the

Low Corridor rail line. Id. However, if the 6.5 mile length of the Low corridor rail line that

is bypassed by the west valley alternative is deleted from the earthwork analysis, there

would be a net loss of approximately 40,000 cubic yards of such excess excavated material.

Id. Assuming that the remaining excess cut material is available for use as fill for the west

valley alternative, as much as 340,000 cubic yards of additional material would need to be

brought into the site from another location in order to construct this alternative. Id.

Importation of this fill material would be very expensive, and would require on the order of

34,000 truck trips along I-80 and local roadways to bring this material to the site. Id. In

addition, the source of this fill material would need to be identified, and could result in

separate environmental impacts. Id. These impacts would exceed the cut and fill impacts

of the proposed Low Corridor rail line. Id.

2.69. Applicant witnesses Donnell and Hayes supported the Staff’s position with

detailed testimony. Donnell, Post Tr. 4564 at 5-8; Hayes, Post Tr. 4564 at 5-11. SUWA

witness Catlin, however, did not address the earthwork implications of the west valley rail

alternative. Accordingly, the Licensing Board finds that the west valley rail alternative would

require larger earthwork emplacements than the Low Corridor rail line, as described above,

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and would have much greater environmental impacts in this regard than the proposed Low

Corridor rail line.

2.70. With respect to wilderness issues, Staff witnesses Laub and Stephenson

testified that the west valley rail alternative does not cross areas possessing wilderness

characteristics. Laub et. al., Post Tr. 4653 at 30. The Staff concluded that the impacts to

wilderness values from the proposed Low Corridor rail line do not differ significantly from

the impacts expected from the west valley rail alternative. Id. at 31. The Staff’s conclusion

is based on the fact that none of the areas located near the two routes, including the area

referred to by SUWA as the NCMA, have any wilderness or wilderness study area

designation, and do not contain wilderness values or characteristics. Id. The Applicant

supports this position. Davis, Post Tr. 4564 at 3-8.

2.71. In response to a question from the Board, Staff witness Stephenson testified

that greasewood is native vegetation that is fire resistant, and that BLM’s goal is to retain

as much native vegetation as they can. Tr. 4668-69. On recross-examination, SUWA

witness Catlin stated that the west valley rail alternative would injure some of the

greasewood community through which it would cross. Tr. 4958.

2.72. SUWA witness Catlin testified that the west valley rail alternative would have

an advantage over the Low Corridor alignment in that it would not traverse the the NCMA.

Catlin, Post Tr. 4795, at 7. Having found that the area of the NCMA that the proposed Low

Corridor rail line crosses does not have wilderness characteristics, as set forth above, the

Licensing Board finds this asserted advantage illusory. Dr. Catlin nonetheless asserts that

the west valley alternative would have many of the same impacts as the proposed rail line.

Id. at 8. His testimony in this regard is set forth below.

2.73. SUWA witness Catlin testified that the proposed Low Corridor rail line could

cause several impacts to the wilderness character of the NCMA. Id. at 6-7. Some of these

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impacts, however, would occur only if an access road were constructed together with the

proposed rail line. See id. at 7. Since Dr. Catlin did not read the ER or the applications

relating to the proposed rail line pending before BLM and STB, he was unaware that no

such road is planned. Tr. 4824-25; 4903; 4906-07; see Staff Exhibits Z and AA. In

addition, SUWA witness Catlin stated that he assumed that portions of the rail line

alignment would be burned to keep them free of vegetation, but admitted that he did not

know if the Applicant planned on using such methods. Tr. 4826-27. He also admitted

under cross examination that the proposed rail line would not have impacts on springs

where the proposed line crosses the NCMA. Tr. 4829. Accordingly, the Licensing Board

accords little weight to SUWA witness Catlin’s testimony on these impacts.

2.74. The Board asked Dr. Catlin to compare the impacts purportedly associated

with the proposed Low Corridor rail line with those that might be associated with the west

valley rail alternative. Tr. 4912. Dr. Catlin stated that fire risk in some parts of the two

alignments are the same and in other parts might differ. Tr. 4913. He appeared to state

that the proposed rail line might pose a greater fire risk than the west valley alternative. Id.

Dr. Catlin’s conclusion in this regard appears to be based on his assumption that controlled

burns would be used to keep the proposed Low Corridor rail line free from vegetation.

Tr. 4826-27. The ER and FEIS, however, do not indicate that this is the case. See Staff

Exh. E, §§ 5.8.4, 2.1.1.3, 5.4.1.1, and 5.4.4.1; Davis, Post Tr. 4564 at 8. Accordingly, the

Licensing Board finds that there is no significant difference between the proposed rail line

and the west valley alternative with respect to fire risk.

2.75. With respect to runoff patterns, Dr. Catlin admitted that there might be a

similarity between the proposed rail line and the west valley alternative, but that he did not

know if there would be a difference in route patterns between the two. Tr. 4915. With

respect to chemicals, Dr. Catlin testified that the two alignment alternatives would be

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similar. Tr. 4916. Finally, with respect to springs, Dr. Catlin testified that the two alignment

alternatives would have about the same impact, regardless of magnitude. Tr. 4917. Based

on the foregoing, the Licensing Board finds that with respect to impacts on runoff, chemical

application, and springs, the impacts of the west valley rail alternative would not differ

significantly from those of the proposed Low Corridor rail line.

d. Alternative alignment suggested by SUWA

2.76. As set forth above in ¶ 2.28, the Staff analyzed an alternative suggested by

SUWA that might run “two miles to the east “ of the proposed Low Corridor rail line. The

west valley rail alternative would require as much as 340,000 cubic yards of fill to be

imported to the site. Laub et. al., Post Tr. 4653 at 33. According to Staff witness

McFarland, this other alternative, located two miles east of the west valley alternative, would

require approximately 1.5 times that amount, or approximately 500,000 cubic yards. Id.

Applicant witness Davis supported this view, and testified that such an alignment would

probably be infeasible. Davis, Post Tr. 4564 at 8-9; Donnell, Post Tr. 4564 at 5. SUWA

witness Catlin disclaimed any knowledge with respect to this alternative. Tr. 4914-15. He

did testify, however, that an alignment routed through mudflats, as this alignment would be,

would have a lower risk to spread fire. Tr. 4914. In accordance with the Commission’s

decision in LES, it is appropriate to accord weight to the Applicant’s determination that this

alternative is not reasonable. In view of the foregoing, the Licensing Board finds that other

alternatives could be constructed with either less imported fill (e.g., the west valley

alternative) or no imported fill at all (e.g., the Low Corridor rail line), and this additional

alternative proposed by SUWA would result in greater adverse impacts than such other

alternatives, and does not appear to warrant further consideration.

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e. Other alternatives

2.77. Dr. Catlin and SUWA did not identify any other rail alignment alternative to

the proposed Low Corridor rail line. Tr. 4845-49. SUWA has not offered any evidence

disputing the criteria for the design of the proposed rail line established by the Applicant,

nor has SUWA identified any alternative to the proposed rail line that meets those criteria.

In view of the Staff’s analysis of rail alignment alternatives discussed above, no further

analysis is necessary. See Custer County Action Ass’n, 256 F.3d at 1041.

III. CONCLUSIONS OF LAW

3.1. The Licensing Board has considered all of the evidence presented by the

parties on Contention SUWA B (Rail Line Alignment Alternatives). Based upon a review

of the entire record in this proceeding and the proposed findings of fact and conclusions of

law submitted by the parties, and based upon the findings of fact set forth herein, which are

supported by reliable, probative, and substantial evidence in the record, the Board has

decided all matters in controversy concerning this contention and reaches the following

conclusions.

3.2. Pursuant to NEPA, the Staff, in its FEIS, is required to consider all

reasonable alternatives to the proposed action.

3.3. We conclude that in FEIS Section 2.2.4.2, the Staff considered and analyzed

two alternative rail alignments (both on the eastern side of Skull Valley, away from the

Cedar Mountains), in addition to its consideration of the Low Corridor rail line. See Staff

Exh. E at 2-47. In addition, FEIS Section 2.2.4.2 documents the Staff’s consideration and

analysis of the west valley alternative, an alternative rail alignment that would completely

avoid the area referred to by SUWA as the “North Cedar Mountains Area.” Id. at 2-49

to 2-51.

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3.4. For the reasons discussed above, we agree with BLM’s determination that,

as discussed in FEIS Section 2.2.4.2 (see id. at 2-49), the area described by SUWA as the

“North Cedar Mountain Area” contains no wilderness values or characteristics. Because

the area lacks such values or characteristics, no alternatives need to be developed to avoid

or minimize the potential for adverse impacts to such asserted values or characteristics.

3.5. Further, we conclude that the Staff has considered and evaluated a range

of alternatives to the proposed Low Corridor rail line, and has adequately described the

environmental impacts of each alternative considered. In addition, the FEIS considered

alternative rail alignments and the concern expressed by SUWA with respect to the alleged

wilderness character and potential wilderness designation of the “North Cedar Mountains

Area,” and appropriately concluded that a rail alternative that avoids such area would not

be environmentally preferable to the Low Corridor rail line.

3.6. Finally, we conclude that the FEIS addresses an appropriate range of

reasonable alternatives to the proposed Low Corridor rail line.

Respectfully submitted,

/RA/

Robert M. WeismanCounsel for NRC Staff

Dated at Rockville, Marylandthis 7th day of June, 2002

UNITED STATES OF AMERICANUCLEAR REGULATORY COMMISSION

BEFORE THE COMMISSION

In the Matter of ))

PRIVATE FUEL STORAGE L.L.C. ) Docket No. 72-22-ISFSI)

(Independent Spent ) Fuel Storage Installation) )

CERTIFICATE OF SERVICE

I hereby certify that copies of the “NRC STAFF’S FINDINGS OF FACT ANDCONCLUSIONS OF LAW CONCERNING CONTENTION SUWA B (RAIL LINEALIGNMENT ALTERNATIVES)” in the above captioned proceeding have been served onthe following through deposit in the NRC’s internal mail system, with copies by electronicmail, as indicated by an asterisk, or by deposit in the U.S. Postal Service, as indicated bydouble asterisk, with copies by electronic mail this 7th day of June, 2002:

Michael C. Farrar, Chairman*Administrative JudgeAtomic Safety and Licensing BoardU.S. Nuclear Regulatory CommissionWashington, DC 20555(E-mail copy to MCF@NRC.GOV)

Dr. Jerry R. Kline*Administrative JudgeAtomic Safety and Licensing BoardU.S. Nuclear Regulatory CommissionWashington, DC 20555(E-mail copy to JRK2@NRC.GOV)

Dr. Peter S. Lam*Administrative JudgeAtomic Safety and Licensing BoardU.S. Nuclear Regulatory CommissionWashington, DC 20555(E-mail copy to PSL@NRC.GOV)

Atomic Safety and Licensing Board PanelU.S. Nuclear Regulatory CommissionWashington, DC 20555

Office of the Secretary*ATTN: Rulemakings and Adjudications StaffU.S. Nuclear Regulatory CommissionWashington, DC 20555(E-mail copies to SECY@NRC.GOV and HEARINGDOCKET@NRC.GOV)

Office of the Commission Appellate AdjudicationMail Stop: 16-C-1 OWFNU.S. Nuclear Regulatory CommissionWashington, DC 20555

James M. Cutchin, V*Atomic Safety and Licensing BoardU.S. Nuclear Regulatory CommissionWashington, DC 20555(E-mail to JMC3@NRC.GOV)

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Jay E. Silberg, Esq.**Ernest Blake, Esq.Paul A. Gaukler, Esq.Sean Barnett, Esq.Shaw Pittman2300 N Street, N.WWashington, DC 20037-8007(E-mail copy to jay_silberg, paul_gaukler, sean_barnett, and ernest_blake@shawpittman.com)

Tim Vollmann, Esq.**3301-R Coors Road N.W.Suite 302Albuquerque, NM 87120(E-mail copy to tvollmann@hotmail.com)

Leon Bear, ChairmanSkull Valley Band of Goshute Indians3359 South MainBox 808Salt Lake City, Utah 84115

Denise Chancellor, Esq.**Fred G. Nelson, Esq.Laura Lockhart, Esq.Utah Attorney General’s Office160 East 300 South, 5th FloorP.O. Box 140873Salt Lake City, UT 84114-0873 (E-mail copies to dchancellor, llockhart, fnelson, jsoper, and jbraxton@utah.gov, adminag@xmission.com

Connie Nakahara, Esq.**Utah Dep’t of Environmental Quality168 North 1950 WestP. O. Box 144810Salt Lake City, UT 84114-4810(E-mail copy to cnakahara@utah.gov)

Diane Curran, Esq.**Harmon, Curran, Spielberg & Eisenberg1726 M Street, N.W., Suite 600Washington, D.C. 20036(E-mail copy to dcurran@harmoncurran.com)

John Paul Kennedy, Sr., Esq.**David W. Tufts, Esq.Durham, Jones & Pinegar111 East Broadway, Suite 900Salt Lake City, UT 84105(E-mail copy to dtufts@djplaw.com)

Joro Walker, Esq.**Land and Water Fund of the Rockies1473 South 1100 East, Suite FSalt Lake City, UT 84105(E-mail copy to utah@lawfund.org

Paul C. EchoHawk, Esq.EchoHawk Law Offices151 North 4th Avenue, Suite AP.O. Box 6119Pocatello, Idaho 83205-6119(E-Mail copies to: paul, larry and mark@echohawk.com)

/RA/

____________________________ Robert M. Weisman Counsel for NRC Staff